Editor’s note: this week we commemorate the 2-year anniversary of the lawsuit that almost killed Mojo Supreme back in May 2006. See Part 1, 2, 3, 4, 5, or read on for Part 6, below:
The Final Countdown: Down to One Business Day
I went to bed on Thursday night half-joking about showing up to court on Monday morning representing myself.
Waking up Friday, I knew that I needed to find a lawyer to help me navigate through the procedural quagmire.
The problem was: I had one business day left and on Monday I had to walk into court. Sure I could ask for a delay to find a lawyer and plan a defense, but I wanted this over with, regardless of what the verdict was.
I knew I would win, I just had to find a way how to.
On Thursday, I got lucky and managed to speak to an apparent injunction specialist, but this was after I had allowed a not-so-specialist walk out of my office with the papers and a $10K check (to give you a sense of the daunting task ahead: just making photocopies would have taken 3 hours). That lawyer ended up charging me for 10-odd hours for half a day’s of “work”, indicating that this would prove to be expensive if I actually chose to go all the way and fight the accusation that I was violating my non-competition and that WatchMojo.com posed an urgent threat to my old employer, with my mere existence causing them irreparable harm.
Why the italics? You see, up for debate was not whether I was violating my non-compete. That would be discussed at the merit stage.
In fact, I knew I wasn’t violating my non-compete, they knew I wasn’t, the American people knew I wasn’t. That is why their lawyers had filed a motion for an injunction trying to shut us down until such a stage. My problem was, their script called for there to be no such trial: their strategy was to shut me down and turn the temporary injunction into a de facto permanent one.
While their lawyers made a lot of mistakes, that broad strategy was the harshest - but shrewdest - one imaginable. They had figured that I was checkmate: I would either simply give up. If I chose to fight, I would be outspent before even starting phase 1.
What are the phases / stages of an injunction? Take notes, one day you will thank me for the following:
All About Injunctions
I’ve covered injunctions aplenty in the past. But I’ll summarize:
> Types of Injunctions
A Provisional Injunction, if granted, shuts you down for 10 days. This can be re-filed perpetually for 10-day periods until you move to the next phase.
An Interlocutory Injunction shuts you down until the merits stage of the Trial. A Permanent Injunction, well, that’s the kybosh on your business and that is oftentimes handed down at this last stage.
In a provisional injunction, you have to pass four tests; in an interlocutory injunction, you have to pass three tests (more on this below).
Those who seek injunctions do so hoping that it proves so expensive and costly that a Provisional turns into a de facto Permanent one. Technically a company can lose round 1 and round 2 but win at the merits, but for an Internet company, any granted injunction is a mortal blow. Had WatchMojo.com shut down and we would have had to wait a year to go to trial, I am not sure we would be here today.
In the case of Injunctions, the system is clear: you are presumed guilty until proven innocent. Well, not quite. Here is how it works. With injunctions, the party moving (making the motion) swears on the face of the record - through affidavits and exhibits - that there is some harm being caused by the defendant.
Since they swear that these are all true and accurate (though sometimes, we presume, they are not), a defendant can only argue his or her case using the documents that are submitted on the face of the record.
> Tests
To obtain a Provisional Injunction, the plaintiff/petitioner must pass four tests:
- Urgency: there must be an urgent need to shut me down. In laymen’s terms, you get to your gas station one morning and someone is bulldozing the neighbor’s lawn to erect a competing gas station, but that might not be enough, since that is competition only, what would be cause for an injunction is if it’s an old employee of yours with whom you signed a non-competition; or if they are not an employee, it is someone who is using your trademark.
- Clear Right: Here the plaintiff needs to prove that there is a material similarity in business, or that they have a clear right to get an injunction. This sometimes is used interchangeably with Clear and Apparent Right. If it is Clear Right, it it harder for the plaintiffs and easier for the accused, if it is Apparent Right, it is the opposite.
- Balance of Inconvenience: The key here is not who is bigger or smaller, but rather, who suffers more from the Judge’s decision if one is granted / not granted.
- Irreparable Harm: In the fourth and final test, the plaintiffs must prove that by staying open for business, I cause irreparable harm to them. Loss of clients, traffic or revenue was their argument.
In an interlocutory injunction, you need not prove urgency. Recall that the Petitioners’ lawyers had last Wednesday erroneously filed a motion for an interlocutory injunction; that’s partially why we were given an extension until Monday. But their case was very much making a case that this was an urgent matter.
It should be stated, unequivocally, that harm is far and away the most important factor in injunctions.
If no harm is done, or if the plaintiff says that no harm is done, no way will the injunction be granted. Re-read that last statement a few times. Furthermore, even if some harm is done, then harm needs to be so irreparable and immeasurable that it cannot be quantified in the eventual merits stage of the trial, and as such the judge will grant temporary relief as to prevent losses of an immeasurable scale.
As you can see, once you get to study how injunctions work, you start to feel confident. But on Tuesday when I was served I had zero knowledge of all of this.
Litigation Will Make You Lose Your Mind
Throughout Friday, I spent some time researching all of this, so going into my meeting at 7pm with the injunction maven, I knew what to expect, sort of.
One reason why I absolutely hate my former colleagues and overlords at the mother ship was because of the toll this took on me and my wife:
Friday evening when we left the office, we looked for our car for 30 minutes, just aimlessly walking around. We were both so stressed and strained that we walked around and around and around looking for our car like a couple of crazy people, pressing the car keys hoping for a honking sound, not knowing that we were in fact blocks away from the car.
We conducted such an exhaustive search that had we been put on the case to find Osaba bin Laden, we would have shown up to our 7pm meeting with the lawyer with him. I would have had some explaining to do.
All to say, my wife and I finally found our car and made our way to the lawyer’s office and began to discuss what was at stake - without Osama, of course.
Chambers vs. Courtroom
The previous day, we had agreed to a fee for her to help me out and train me a few hours on Friday evening and again on Sunday evening.
When you tell a lawyer that you want to represent yourself, they think you are crazy. She was busy Monday morning so from the get-go she could not really help me with representation in court, so that was moot.
But then, the other shoe fell.
Monday morning we were not meeting in a courtroom but rather, the judge’s chambers. Basically, this meant that the judge could technically decide not to bring the clients (on either side) into her Chambers. For this reason, I made up my mind to fly the sorties - so to speak - solo.
Besides, even if I would have found a reasonably priced injunction expert (as I had done), there was no way that a lawyer could master the intricacies of new media and how competition law applies to this field. Don’t get me wrong, what we do is not rocket science, but still.
You see, the petitioners had singled-out screen grabs showing WatchMojo.com next to their site, emphasizing things like navigation bars, use of thumbnails, tables and other common aspects between, well, all content sites. At face value, they had managed to paint the sites as somewhat competitive but the truth was that anyone with any web experience - or common sense and lack of douchebaggerie - would know this was a pile of horse shit.
CNN, BabyCenter and IGN all have a navigation bar listing the categories, does that make them competitive, no?
For the love of all things holy, the official websites of the anti-defamation league, the KKK and Nation of Muslim all have hyperlinks, does that confuse people into thinking they’re on the same site?
They were trying to fool the court into shutting me down, plain and simple. This was just one nuance.
F****g Face of the Record
The other problem was that the seven affidavits were laced with falsehoods and outright lies. But, I could not introduce new evidence to support my claims, I had to fight with one hand tied between my back, using the evidence that was on the face of the record.
Incidentally, while many people kept referring to this trial as David vs. Goliath, it’s worth noting a major nuance. David introduced a new weapon (his slingshot) into the mix. Unlike David, I could only fight back using the weapons Goliath had thrown into the ring. I could only introduce new weapons at the merits stage, and, well, you guessed it, to get to that phase I’d have to walk through fire and sell my house to finance the efforts.
All to say, while some might think my decision to represent myself was reckless, the bottom line was it was a calculated decision to avoid the Judge from taking the lawyers only in her Chambers and a desire to keep the costs down should the game go to extra innings.
The Difference Between Being a Doctor and a Lawyer
The truth is, law is not like medicine.
No one can walk into an operating room, perform surgery and successfully walk away without hurting someone. But you can train to be a lawyer for a day. You might need to go back and train for the next day, but on any given day, a commoner can beat a lawyer. I don’t recommend this to any one, or anyone for that matter. I like to argue and debate and any one who is crazy enough to get into a discussion with me will realize that I can answer and address everything.
Law boils down to the ability to understand the legal code and debate it.
Understand that and you can win anything, provided you did not break the law.
The Right to Represent Myself
A bigger problem, frankly, was that IGN was suing both my company and myself. I could represent myself, but only a member of the bar could represent the Company. The lawyer advising me and I actually tried to find a semantic loophole in the Code of Civil Procedure and to this day I think the loophole could have been argued, but that would have sent this into greater twilight zone territory and called for a debate at the Supreme Court level.
If you are really interested in reading about this point, email me at ash@mojosupreme.com or leave a note in the comment and I will follow up with a separate post. I did not want to waste the court’s time with that, frankly.
Ultimately, we simply rolled the dice and took the risk: I would rep myself and pray for the best.
While their lawyers had initially objected to my repping myself and even the Judge on Wednesday had urged me to go and find a lawyer, I was willing to try one more time knowing that at the very least, I could always get an extension, what with now having a relatively reasonably-priced injunction guru as my lawyer, maybe.
It’s worth noting that she had agreed to training me for a couple of hours.
It’s also worth noting that my wife is Greek, so was the lawyer… maybe that helped in her even helping me out on a Friday evening.
Oh, it’s also worth noting, that back in 2004 I had written a book on Alexander the Great; the Greek are impressed by that interest in their culture… and that book will play a role on Monday, hence why I am mentioning it now.
You Can Run But You Can’t Hide
Running through the seven affidavits and thousands of pages, we were able to dissect and pick apart most of their arguments.
But, as we discussed the case itself, we also chatted about the next steps in this game of chess. Tragically, it was becoming clear that their lawyers had calculated some resistance and had planned for a long-term strategy.
You might recall how the initial law firm that helped me - Blakes - had demonstrated just how much lawyers focus on the procedural at the cost of the substantive. My newfound legal expert here, too, was focusing a lot of such details.
But as I explained the online media landscape some more, it was pretty clear that the big bad legal firm of Fasken Martineau was proving that in legal circles - as in business ones - big organizations tend to get sloppy, make mistakes and rest on their laurels.
As we went through the insane amount of arcane details, it was clear that I actually had a strong defense (I’ll outline the details of my defense over the next two days, when I look back at the weekend before the trial date).
The problem was simple: even if I win the battle on Monday at the provisional stage, they will move to the Interlocutory stage. And - you guessed it - even if that happens, then they would move to the merits stage of the trial.
She was politely trying to tell me that unless I was willing to spend tens - if not hundreds - of thousands of dollars, I should simply start a new company.
Friday night was the most “mixed feelings” moment of my professional life: I had realized that I could in fact beat these legal experts in court, but doing so would only prolong the inevitable.
When your lawyer tells you “save your money, don’t fight this, just start something else”, you realize that you are f****d.
It’s Personal
The problem, of course, was that the injunction was not telling me “not to operate an online men’s magazine”; it was telling me don’t do anything: no WatchMojo.com, no blogs, no search engines, no nothing.
I knew that these douchebags were out for blood and if they smelled it they would just continue to nail me no matter what I did. As much as my head said “give up” my heart was saying “fight it”.
Ultimately, I listened to my balls and believed that I would at least fight it on Monday and if nothing else, I’d get a helluvan experience.
The Irony of Ironies
My wife and I left the lawyer’s house that night at around 11pm. Once home, my wife began to film me with a camcorder my good friend had given me earlier in June of 2005 when I got married.
Ironically, I had launched a video content company, but I’d never shot a single shot or edited a frame. We joked about doing a documentary about the ordeal so that weekend she continued to film more and more.
In fact, the previous Wednesday, our cameraman filmed me return from the courtroom and I ended up with a few hours of footage. I came across some of the footage this month and as much as I wanted to put all of this behind me, I realized I had to get some form of closure… so I decided to chronicle it all here.
But then and there, I guess part of it was me realizing that I might not have a company to run come Monday afternoon, and I’d need a new story to tell.
So what happened on the weekend before the trial on Monday?
- Will I show up to court alone or with a lawyer?
- Would the Judge shut us down?
Upcoming posts:
Tuesday: Flashback Part 7 - May 13th 2006: Non-Competition Agreements
Wednesday: Flashback Part 8 - May 14th 2006: Constructive Dismissal
Thursday: Flashback Part 9 - May 15th 2006: The Trial
Friday: Flashback Part 10 - May 16th 2006: Verdict and Subsequent Turn of Events
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